United States v. Salas–Garcia

• Decision Date: 22 October 2012
• Docket Number: No. 11–2204.,11–2204.
• Citation: 698 F.3d 1242
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Ernesto SALAS–GARCIA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

698 F.3d 1242

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Ernesto SALAS–GARCIA, Defendant–Appellant.

No. 11–2204.

United States Court of Appeals, Tenth Circuit.

Oct. 22, 2012.

Jason Bowles (B.J. Crow and Monnica L. Garcia, with him on the briefs), of Bowles and Crow, Albuquerque, NM, for Defendant–Appellant.

David N. Williams, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, McKAY and GORSUCH, Circuit Judges.

BRISCOE, Chief Judge.

This is a direct appeal by Jose Salas–Garcia following his conditional plea of guilty to one count of conspiring to possess with the intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 846, and one count of possessing more than 500 grams of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Prior to his plea, he moved to suppress drugs found in the vehicle he was driving as well as statements he made to police, arguing that he was illegally arrested and the evidence subsequently obtained was the fruit of a constitutional violation. The district court denied his motion to suppress. Salas–Garcia entered a conditional guilty plea on both counts. Thereafter, Salas–Garcia sought to withdraw his guilty plea because he did not fully understand the immigration consequencesof his plea. He argued he had an absolute right to withdraw his plea because the district court had not yet accepted it. The district court denied his motion to withdraw his guilty plea and sentenced Salas–Garcia to concurrent terms of sixty months' imprisonment and a four-year term of supervised release. We affirm the district court's denial of Salas–Garcia's motion to suppress and dismiss Salas–Garcia's appeal from the district court's denial of his motion to withdraw his guilty plea.

I. BACKGROUND

In September 2009, officers of the Middle Rio Grande Narcotics Task Force arrested an individual for distributing cocaine. Following his arrest, this individual became a confidential informant for the Task Force. In late November 2009, the confidential informant identified Edgar Castenada as a broker of large cocaine sales.¹ Task Force Agent Oscar Villegas then devised a plan for the confidential informant to arrange a buy of a large quantity of cocaine from Castenada.

On December 2, 2009, the confidential informant reported to Agent Villegas that Castenada was ready to deliver one kilogram of cocaine, with the exchange to take place in the parking lot of Presbyterian Hospital, located at the intersection of Central Avenue and Cedar Street in Albuquerque, New Mexico. Agent Villegas, along with Agent Clarence Davis and other members of the Task Force in unmarked cars, followed Castenada as he drove a red Chrysler sedan to La Poblana Tortilleria. Salas–Garcia arrived at the tortilla factory a few minutes later in a red Dodge truck, and Salas–Garcia and Castenada drove their vehicles toward Presbyterian Hospital, mimicking each other's lane changes. Agents Villegas and Davis knew from experience that drug traffickers often use two or three vehicles as a counter-surveillance technique to either elude law enforcement or to prevent the theft of the drugs they are delivering. Castenada and Salas–Garcia both pulled into the parking lot of Presbyterian Hospital, and the confidential informant then reported to Agent Villegas that “the drugs are here.” Aplt. App. at 7–8. Castenada pulled into the hospital's Emergency Room parking lot and Salas–Garcia headed toward Pediatric Urgent Care on the south side of the hospital. Agent Villegas observed a female, who appeared to be coming from the hospital, enter Salas–Garcia's truck. Agent Villegas then directed marked police units to stop both Castenada and Salas–Garcia in their respective vehicles.

Salas–Garcia was stopped by a uniformed officer and was immediately placed in handcuffs. Agent Villegas arrived on the scene seconds after the stop occurred and approached the female passenger in the truck that Salas–Garcia was driving. The passenger told Agent Villegas that the driver of the truck was her ex-husband, and that he had unexpectedly called to tell her that he would be picking her up from work. Agent Villegas concluded that she was not involved in the cocaine transaction and advised Ms. Salas–Garcia that she was free to leave. Approximately two minutes after Agent Villegas arrived at the hospital, Agent Davis came to where Salas–Garcia was stopped. At this point, Agent Villegas turned the investigation over to Agent Davis, and Agent Villegas returned to his office to initiate procurement of a search warrant. Agent Davis informed Salas–Garcia that he was not under arrest and that the officers were conducting an investigation. Officers patted down Salas–Garcia while he remained in handcuffs, and Salas–Garcia agreed to stay and cooperate with the investigation. After conferring with Agent Villegas via radio, Agent Davis instructed the patrol officer to remove Salas–Garcia's handcuffs, which he had been wearing for approximately four to ten minutes. Salas–Garcia then sat on a nearby curb. Agent Villegas also informed Agent Davis that he had requested a drug-sniffing K–9 unit because he was unsure which vehicle was carrying the drugs. After inspecting Salas–Garcia's driver's license, Agent Davis recognized his name from an independent Drug Enforcement Agency (DEA) investigation regarding suspected drug trafficking. Agent Davis then contacted DEA Agent Jeffrey Mauldin, and when Agent Mauldin arrived at the scene approximately ten minutes after he was alerted of the stop, Salas–Garcia was no longer in handcuffs.

Agent Davis informed Salas–Garcia that he wanted to ask some “investigatory questions.” Id. at 9. Agent Davis advised Salas–Garcia of his Miranda rights in Spanish. Salas–Garcia stated that he understood his rights and agreed to speak with Agent Davis without the presence of an attorney. Agent Davis's gun was not displayed, and neither the uniformed patrol officer nor Agent Mauldin were in the immediate vicinity.

Agent Davis asked Salas–Garcia if he had any drugs with him. Salas–Garcia responded, “yes.” Id. at 10. Agent Davis asked where the drugs were, and Salas–Garcia answered that they were in his truck. When asked about the quantity of drugs in the truck, Salas–Garcia answered, “a kilo.” Id. Agent Davis asked if the drugs were cocaine, and Salas–Garcia said, “I think so.” Id. Salas–Garcia stated the drugs were located near the center of the truck “with the tortillas and chilies from the store.” Id. Salas–Garcia also stated that he was delivering the drugs for another person and was to receive $400 for transporting the drugs to the hospital.

Agent Villegas sought and obtained a search warrant for the red Dodge truck. After conducting a search of the truck, officers found a brick of cocaine in the center of the second row seats in a bag containing chilies. Following this discovery, Salas–Garcia was then arrested and subsequently charged.

In district court, Salas–Garcia sought to suppress the physical evidence and statements obtained as a result of his seizure on December 2, 2009, and the search of the red Dodge truck. The district court denied Salas–Garcia's motion to suppress.

On January 7, 2011, Salas–Garcia appeared before a magistrate judge and entered a conditional plea of guilty to both counts in the indictment. In the plea, Salas–Garcia reserved the right to appeal the denial of his motion to suppress. The plea agreement also described the immigration consequences of his plea. Salas–Garcia is a legal permanent resident of the United States, and deportation to his home country is presumptively mandatory because he is pleading guilty to two aggravated felonies.

Salas–Garcia then retained new counsel and sought to withdraw his guilty plea on grounds that the district court had not yet accepted his guilty plea and that he did not fully understand the immigration consequences of his plea. After a hearing, the district court denied the motion. The district court sentenced Salas–Garcia to a term of sixty months' imprisonment followed by a term of supervised release of four years. Salas–Garcia appeals the district court's denial of his motion to suppress and the district court's denial of his motion to withdraw his guilty plea.

II. DISCUSSION

A. Motion to Suppress

Salas–Garcia argues that the officers exceeded the scope of the Terry stop and lacked probable cause to handcuff and detain him prior to questioning. Accordingly, Salas–Garcia argues, his responses to the subsequent questioning and the drugs seized from the truck were fruits of the poisonous tree and should be suppressed. “The poisonous tree doctrine allows a defendant to exclude evidence ‘come at by exploitation’ of violations of his Fourth Amendment rights.” United States v. Jarvi, 537 F.3d 1256, 1259 (10th Cir.2008) (quoting Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

In reviewing the denial of a motion to suppress, “ ‘we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment.’ ” United States v. Polly, 630 F.3d 991, 996 (10th Cir.2011) (quoting United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir.2009)).

1. Legal Framework

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A seizure occurs when “a reasonable person would not feel free to leave or disregard the contact.” Lundstrom v. Romero, 616 F.3d 1108, 1119 (10th Cir.2010) (citing Petersen v. Farnsworth, 371 F.3d 1219, 1221–22 (10th Cir.2004)). To determine whether a seizure is constitutional, “we must balance...